Constitutional and Administrative Law

This work approaches the issue of democratic deficit from the angle of accountability, seen in contemporary society as an essential element of democratic government. It looks at differing understandings of the concept in the Member States and at various techniques — political, legal, and managerial — by which accountability can be assured. These include the Parliament as well as national parliaments but extend to less familiar institutions, such as the European Court of Auditors.

This book provides an analysis of the administration of the European Union and the legal framework within which that administration operates. It examines the multifarious approaches, techniques, and structures of public administration in order to systematize and assess the solutions they offer to political, social, and economic problems. The legal framework of administration is examined from the standpoint of how it meets the demands of specific policy objectives established by democratically accountable decision-makers. Administrative law structures and many of its underlying principles have developed in an evolutionary and isolated manner in each policy area. While aware of the diversity of specific areas, this book takes an overarching approach, setting out the common rules and principles that constitute the general body of EU administrative law. By integrating the disciplines of political and administrative science, and administrative law, the book offers a rich explanation and critique of the complex executive framework of the EU.

An analysis of the European Commission's general role in supervising member state compliance with EU law, this book provides a detailed assessment of centralized EU enforcement. It starts out by asking whether it is viable to establish stronger Commission powers of enforcement at this point in time. Against this backdrop, and as a means of exploring the role of the Commission, the chapters examine a number of different aspects pertaining to the enforcement of EU law. Beginning with an appraisal of the Commission's function under the general EU infringement procedure stipulated in Articles 258 and 260 TFEU, the volume argues that the EU lacks independent self-sustained regime authority. Moreover, this is reflected in both substantive EU law and procedural law, including the general EU infringement procedure. Chapter Two makes the case that Article 258 TFEU can usefully be explained in terms of managerialism. Chapter Three analyses Article 260 TFEU concerning repetitive infringements. In particular, it asserts, EU member state sanctions sustain the managerial approach. It then goes on to examine the Commission's unsuccessful attempts to gain sharper enforcement powers through secondary legislation, and identifies the effective points of functional overlap between enforcement powers and certain types of implementing tools. Finally, it discusses the Commission's role under various non-binding, ad hoc arrangements. The concluding chapter places the general EU infringement procedure in the broader context of a comprehensive (negotiated) policy process. It argues that the enforcement stage shares many features with earlier steps in the legislative process, including flexibility and deliberation.

The second edition of this book provides comprehensive coverage of the administrative system in the EU and the principles of judicial review that apply in this area. The chapters in the first half of the book deal with all the principal variants of the EU administrative regime. Thus, there are chapters dealing with the history and taxonomy of the EU administrative regime, direct administration, shared administration, Comitology, agencies, social partners, and the open method of coordination. The coverage throughout focuses on the legal regime that governs the particular form of administration and broader issues of accountability, drawing on literature from political science as well as law. The focus in the second part of the book shifts to the principles of judicial review. There are detailed chapters covering all principles of judicial review and the discussion of the law throughout is analytical and contextual. The discussion in this part of the book begins with a chapter that considers the principles that have informed the development of EU judicial review. This is followed by a chapter dealing with the judicial system and the way in which reform could impact on the subject matter of the book. There are then chapters dealing with competence, access, transparency, process; law, fact and discretion; rights, equality, legitimate expectations, two chapters on proportionality, the precautionary principle, two chapters on remedies, and the ombudsman. The book paints a comprehensive picture of administrative law as it exists in the EU today.

European agencies have been created at a rapid pace in recent years in a multitude of highly pertinent and sensitive fields ranging from pharmaceuticals and aviation safety to chemicals or financial supervision. This agency phenomenon shows no signs of relenting, and the trend in recent years is towards the delegation of ever-broader powers. These bodies, meant to operate at arm's length from political control, have real power and their opinions and decisions can have a direct impact on individuals, regulators, and member states. Given the powers wielded by the agencies, who is responsible for holding these non-majoritarian actors to account? Is the growing concern surrounding agency accountability ‘much ado about nothing’ or are we faced with the threat of a powerful and unaccountable bureaucracy? These are precisely the questions that this book seeks to answer. It thus addresses one of the most relevant topics in current European governance: the accountability of European agencies. Scholars have increasingly called attention to the risk of placing too much power in the hands of such agencies, which operate at arm's length from traditional controls and cannot easily be held accountable for their actions. Although this is a major issue of concern, systematic empirical research into the topic is lacking. This book addresses empirically whether, and if so on what counts, agency accountability is problematic. It examines how the accountability system of European agencies operates at both the de jure as well as the de facto level, through an examination of legal provisions, relevant case law as well as policy documents and extensive interview material. Reflecting on these findings, the book also offers important theoretical insights for our understanding and study of accountability in a complex regulatory regime such as the EU context.

The European Commission has claimed that ‘Solidarity is part of how European society works...’ . But how are we to understand solidarity and what are its implications to government policy? This book addresses the question of what solidarity might mean today and its relevance to the purposes of the European Union and the way it functions. Is solidarity just a slogan or can it have meaningful legal and policy content? Contributions from leading scholars in law, politics, and sociology are brought together in this book to discuss an idea that is coming under fresh scrutiny at a time when the EU's direction following the implementation of the Lisbon Treaty is hotly debated. The book engages with both the content and limitations of solidarity as a concept in political and legal debate, and its application to specific fields such as migration, education, and pension policies. The book provides a provocative analysis of the power and potential of solidarity, applying a sceptical and rigorous assessment of the conditions necessary for it to make a difference to the European political and legal space at a time when traditional manifestations of national solidarity (e.g., in health care) are perceived to be under threat from EU market liberalization policies. A number of chapters consider whether an EU concept of solidarity is possible and how that might affect the balance between market and social priorities for the Union's future.

How to accommodate diverse religious practices and laws within a secular framework is one of the most pressing and controversial problems facing contemporary European public order. This book argues that traditional models of secularism, focusing on the relationship of state and church, are out-dated and that only by embracing a new picture of what secularism means can Europe move forward in the public reconciliation of its religious diversity. The book develops a new model of secularism suitable for Europe as a whole. The new model of secularism is concerned with the way in which modern secular states deal with the presence of diversity in the society. This new conception of secularism is more suited to the European Union whose overall aim is to promote a stable, peaceful and unified economic and political space starting from a wide range of different national experiences and perspectives. The new conception of secularism is also more suited for the Council of Europe at large, and in particular the European Court of Human Rights which faces growing demands for the recognition of freedom of religion in European states. The new model does not defend secularism as an ideological position, but aims to present secularism as our common constitutional tradition as well as the basis for our common constitutional future.